9.  The applicant was born in 1983 and lives in Yerevan.
10.  The applicant is a Jehovah’s Witness. From 1997 he attended various Jehovah’s Witnesses religious services and he was baptised on 18 September 1999 at the age of 16.
11.  On 16 January 2000 the applicant was registered as a person liable for military service with the Erebuni District Military Commissariat (Էրեբունի համայնքի զինվորական կոմիսարիատ).
12.  On 16 January 2001 the applicant, at the age of 17, was called to undergo a medical examination, following which he was declared fit for military service. The applicant became eligible for military service during the 2001 spring draft (April-June).
13.  On 1 April 2001, at the outset of the draft, the applicant sent identical letters to the General Prosecutor of Armenia (ՀՀ գլխավոր դատախազ), the Military Commissioner of Armenia (ՀՀ պաշտպանության նախարարության հանրապետական զինկոմիսար) and the Human Rights Commission of the National Assembly (ՀՀ ազգային ժողովին առընթեր մարդու իրավունքների հանձնաժողով), with the following statement:
“I, Vahan Bayatyan, born in 1983, inform you that I have studied the Bible since 1996 and have trained my conscience by the Bible in harmony with the words of Isaiah 2:4, and I consciously refuse to perform military service. At the same time I inform you that I am ready to perform alternative civilian service in place of military service.”
14.  In early May a summons to appear for military service on 15 May 2001 was delivered to the applicant’s home. On 14 May 2001 an official of the Erebuni District Military Commissariat telephoned the applicant’s home and asked his mother whether the applicant was aware that he had been called to appear at the Commissariat to commence military service the following day. That same evening, the applicant temporarily moved away from his home for fear of being forcibly taken into the military.
15.  On 15 and 16 May 2001 officials from the Commissariat telephoned the applicant’s mother, demanding to know his whereabouts. They threatened to take him into the military by force if he did not come voluntarily. On 17 May 2001, early in the morning, the officials came to the applicant’s home. His parents were asleep and did not open the door. On the same date, the applicant’s mother went to the Commissariat, where she stated that the applicant had left home and she did not know when he would come back. According to the applicant, the Commissariat made no further efforts to contact his family.
16.  On 29 May 2001 the Commission for State and Legal Affairs of the National Assembly (ՀՀ ազգային ժողովի պետական-իրավական հարցերի հանձնաժողով) sent a reply to the applicant’s letter of 1 April 2001, stating:
“In connection with your declaration, ... we inform you that in accordance with the legislation of the Republic of Armenia every citizen ... is obliged to serve in the Armenian army. Since no law has yet been adopted in Armenia on alternative service, you must submit to the current law and serve in the Armenian army.”
17.  In early to mid-June 2001 the applicant returned home, where he lived until his arrest in September 2002.
18.  On 12 June 2001 the National Assembly declared a general amnesty which applied only to those who had committed crimes before 11 June 2001 and was to remain in force until 13 September 2001.
19.  On 26 June 2001 the Erebuni Military Commissar (Էրեբունի համայնքի զինկոմիսար) gave notice to the Erebuni District Prosecutor (Էրեբունի համայնքի դատախազ) that the applicant had failed to report for military service on 15 May 2001 and was intentionally avoiding service in the army.
20.  During July and on 1 August 2001 the applicant, together with his father and his defence counsel, went on several occasions to the District Prosecutor’s Office to enquire with the relevant investigator about his situation and to discuss the forthcoming proceedings.
21.  On 1 August 2001 the investigator instituted criminal proceedings under Article 75 of the Criminal Code on account of the applicant’s draft evasion. According to the applicant, the investigator’s superior, the prosecutor, refused to bring charges against him until further investigations had been carried out. On 8 August 2001 the applicant, who apparently wanted to benefit from the above amnesty, complained about this to the General Prosecutor’s Office (ՀՀ գլխավոր դատախազություն). He received no reply to this complaint.
22.  On 1 October 2001 the investigator issued five decisions in respect of the applicant: (1) to bring a charge of draft evasion against the applicant under Article 75 of the Criminal Code; (2) to apply to the court for authorisation for the applicant’s detention on remand; (3) to declare the applicant a fugitive and institute a search for him; (4) to apply to the court for authorisation to monitor the applicant’s correspondence; and (5) to suspend the proceedings until the applicant had been found. This last order stated:
“... since, having undertaken investigative and search measures, the attempts to find the wanted [applicant] within two months ... have been unsuccessful and his whereabouts are unknown, ... [it is necessary] to suspend the investigation ... and ... to activate the search measures aimed at finding the accused.”
23.  Neither the applicant nor his family were notified of these decisions, despite the fact that since mid-June 2001 he had been living at the family home and that he had met with the investigator on several occasions in July and August 2001.
24.  On 2 October 2001 the Erebuni and Nubarashen District Court of Yerevan (Երևան քաղաքի Էրեբունի և Նուբարաշեն համայնքների առաջին ատյանի դատարան) authorised the monitoring of the applicant’s correspondence and his detention on remand. Neither the applicant nor his family were notified about these decisions, and the investigating authority made no attempt to contact them until the applicant’s arrest in September 2002.
25.  On 26 April 2002 the Convention came into force in respect of Armenia.
26.  On 4 September 2002, while the applicant was at work, two police officers went to his family home, informed his parents that he was on the wanted list and enquired about his whereabouts.
27.  On 5 September 2002 the police officers returned and accompanied the applicant to a local police station, where they drew up a record of the applicant’s voluntary surrender which stated that the applicant, having found out that he was on the wanted list, decided to appear at the police station. On the same date, the applicant was placed in the Nubarashen detention facility.
28.  On 9 September 2002 the investigating authority resumed the criminal proceedings against the applicant.
29.  On 11 September 2002 the applicant was served with the 1 October 2001 charge (see paragraph 22 above) for the first time. During his questioning on the same date, the applicant submitted that he consciously refused to perform military service because of his religious beliefs but was ready to perform alternative civilian service instead.
30.  On the same date, the applicant and his defence counsel were granted access to the case file. The bill of indictment was finalised on 18 September 2002 and approved by the prosecutor on 23 September 2002.
31.  On 22 October 2002 the applicant’s trial commenced in the Erebuni and Nubarashen District Court of Yerevan. The trial was adjourned until 28 October 2002 because the applicant had not been served with a copy of the indictment.
32.  On 28 October 2002, at the court hearing, the applicant made the same submissions as during his questioning (see paragraph 29 above).
33.  On the same date, the Erebuni and Nubarashen District Court of Yerevan found the applicant guilty as charged and sentenced him to one year and six months in prison.
34.  On 29 November 2002 the prosecutor lodged an appeal against this judgment, seeking a heavier punishment. The appeal stated:
“The [applicant] did not accept his guilt, explaining that he refused [military] service having studied the Bible, and as a Jehovah’s Witness his faith did not permit him to serve in the armed forces of Armenia.
[The applicant] is physically fit and is not employed.
I believe that the court imposed an obviously lenient punishment and did not take into consideration the degree of social danger of the crime, the personality of [the applicant], and the clearly unfounded and dangerous reasons for [the applicant’s] refusal of [military] service.”
35.  On 19 December 2002 the applicant lodged objections in reply to the prosecutor’s appeal in which he argued that the judgment imposed was in violation of his freedom of conscience and religion guaranteed by Article 23 of the Armenian Constitution, Article 9 of the Convention and other international instruments. He further argued that the absence of a law on alternative civilian service could not serve as a justification for imposing criminal liability on a person refusing military service for reasons of conscience.
36.  On 24 December 2002, in the proceedings before the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան), the prosecutor argued, inter alia, that a heavier sentence should be imposed also because the applicant had gone into hiding during the investigation. According to the applicant, during the appeal hearing pressure was put on him to abandon his religious beliefs regarding military service; in particular, both the prosecutor and one of the judges offered to terminate his case if he dropped his objection and performed his military duty.
37.  On the same date, the Court of Appeal decided to grant the prosecutor’s appeal and increased the applicant’s sentence to two and a half years, stating that:
“The court of first instance, when sentencing [the applicant], took into account that the offence [the applicant] had committed was not a grave one, that he was young, he had a clean record, he had confessed his guilt, he had actively assisted in the disclosure of the crime and he had sincerely repented.
However, in the course of the appeal proceedings it was established that not only does [the applicant] not accept his guilt, but he does not regret having committed the crime; not only did he not assist in the disclosure of the offence, but he hid from the investigation and his whereabouts were unknown, so a search for him had to be initiated.
Based on these circumstances, as well as taking into account the nature, motives and degree of social danger of the crime, the Court of Appeal considers that the prosecutor’s appeal must be granted, and a heavier and adequate punishment must be imposed on [the applicant].”
38.  On an unspecified date, the applicant lodged an appeal on points of law against that judgment, in which he raised arguments similar to the ones made in his objections of 19 December 2002 (see paragraph 35 above). He reiterated his willingness to perform alternative civilian service and submitted that, instead of spending two and a half years in prison, he could have done socially useful work. According to him, such a possibility was envisaged under section 12 of the Military Liability Act (see paragraph 43 below). The applicant further argued that the principle of alternative service was enshrined in section 19 of the Freedom of Conscience and Religious Organisations Act (see paragraph 44 below), and the absence of appropriate implementation mechanisms could not be blamed on him.
39.  On 24 January 2003 the Court of Cassation (ՀՀ վճռաբեկ դատարան) upheld the judgment of the Court of Appeal, finding, inter alia, that the rights guaranteed by Article 23 of the Constitution were subject to limitations under its Article 44 (see paragraph 41 below), in the interests, for example, of State security, public safety and the protection of public order. Similar limitations were also envisaged by Article 9 § 2 of the Convention.
40.  On 22 July 2003 the applicant was released on parole after having served about ten and a half months of his sentence.